Lim Mey Lee Susan v Singapore Medical Council

• Jurisdiction: Singapore
• Judge: Philip Pillai J
• Judgment Date: 26 May 2011
• Neutral Citation: [2011] SGHC 132
• Court: High Court (Singapore)
• Docket Number: Originating Summons No 1252 of 2010 (Summons No 521 of 2011)
• Year: 2011
• Published date: 27 May 2011
• Hearing Date: 14 February 2011,15 February 2011,01 March 2011,28 March 2011,22 February 2011,28 February 2011,21 February 2011,23 February 2011
• Plaintiff Counsel: Lee Eng Beng SC, Tammy Low, Christine Huang and Elizabeth Wu (Rajah & Tann LLP) and Bernice Loo (Allen & Gledhill LLP)
• Defendant Counsel: Alvin Yeo SC, Melanie Ho, Lim Wei Lee, Sugene Ang and Jolyn de Koza (Wong Partnership LLP),Chong Chin Chin and Sharon Lim
• Subject Matter: Civil Procedure,Administrative Law,Judicial Review,Discovery of documents
• Citation: [2011] SGHC 132

Philip Pillai J:

Summons No 521 of 2011 is an application in connection with the judicial review proceedings in Originating Summons No 1252 of 2010 (“OS 1252/2010”). It is a discovery application to require the Singapore Medical Council (“SMC”) to produce the following categories of documents: (a) In relation to the decision of the SMC to revoke the appointment of the Disciplinary Committee (“1st DC”), which heard a complaint against the Applicant, and the decision to appoint another Disciplinary Committee (“2nd DC”) to hear the same complaint: (i) all correspondence exchanged between the Secretariat of the SMC and any member(s) of the SMC, or between such members inter se, between 29 July 2010 and 16 September 2010; (ii) all documents evidencing discussions between members of the SMC and/or members of the Secretariat of the SMC between 29 July 2010 and 16 September 2010; and (iii) all minutes of meetings of the SMC held between 29 July 2010 and 16 September 2010. (b) All correspondence, emails and minutes of meetings evidencing SMC’s appointment of the 1st DC and the discussions relating to the 1st DC’s appointment and the discussions of the Secretariat of the SMC and/or the SMC in relation to the appointment of the 1st DC. (c) All minutes of meetings, internal papers, drafts and reports prepared by the SMC or working groups within the SMC relating to the amendment of reg 42 of the Medical Registration Regulations which came into effect pursuant to the Medical Registration (Amendment) Regulations 2010 (S 528/2010).

The Applicant had by a letter, dated 24 January 2011, invited the SMC to provide discovery of the above documents which the SMC by a letter, dated 31 January 2011, declined.

The application for discovery is pursuant to O 24 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) (“ROC”). It should be noted, however, that the Applicant has sought both prerogative and non-prerogative relief in OS 1252/2010. I entertain some doubt as to whether the discovery process is applicable if an applicant for judicial review is seeking prerogative relief. Woo Bih Li J in Yip Kok Seng v Traditional Chinese Medicine Practitioners Board [2010] 4 SLR 990 made the following observation (at [17]):

Our O 53 derives from the pre-1977 O 53 in the English equivalent ("English O 53") of the Rules of the Supreme Court 1965, with the distinction that it is (since 1994) begun by ex parte originating summons and not originating motion. The procedure is both uncertain and cumbersome. It is not clear whether certain processes applicable to ordinary originating summons, such as discovery, are applicable in addition to those prescribed under O 53. An applicant seeking both prerogative and ordinary remedies is obliged to proceed via two separate originating processes, and again it is not clear whether subsequent consolidation is possible. From the perspective of a public body, it enjoys the procedural protection in O 53, such as the requirement for leave and the limitation of time, in respect of actions for the prerogative remedies, but not in actions for other remedies. A detailed consideration of these procedural issues can be found in Lord Diplock's leading speech in O'Reilly v Mackman [1983] 2 AC 237 ("O'Reilly") at 280-282.

[emphasis added]

There seems to have been some doubt in English law (prior to the 1977 amendments to O 53 of the Rules of the Supreme Court 1965 (SI 1965 No 1776) (UK) (“RSC”)) as to whether discovery was permissible in judicial review proceedings in which prerogative remedies were sought (see Oliver Sanders, “Disclosure of Documents in Claims for Judicial Review” [2006] JR 194 at 195). Denning LJ in Barnard v National Dock Labour Board [1953] 2 QB 18 held (at 43) that there is “no discovery” in certiorari applications (also see O’Reilly v Mackman [1983] 2 AC 237 at 281 (per Lord Diplock)). However, the UK Law Commission’s Report on Remedies in Administrative Law (Cmd 6407) in 1976 noted (at [15]) that the general power to order discovery under O 24 of the RSC was prima facie applicable to O 53 of the RSC:

Although there is no specific rule relating to discovery in Order 53 of the Rules of the Supreme Court there is a general power under rule 3 of Order 24 to order discovery in any “cause or matter (whether begun by writ, originating summons or otherwise)”. However, Denning LJ, in Barnard v National Dock Labour Board, said that there was no discovery in certiorari and certainly we know of no case where it has been ordered. Similarly there is a general power to order interrogatories under rule 1(1) of Order 26 in respect of ‘any cause or matter’, but here again we know of no prerogative order proceedings in which such an order has been made. …

[emphasis added]

Neither party addressed me on whether discovery is in principle available in these judicial review proceedings. In my view, however, whatever the historical position, discovery should, in principle, be available in all judicial review proceedings. As the English Law Commission has observed (see [4] above), O 24, r 1 of the ROC is unqualified in its application to “any party to a cause or matter”:

(1) Subject to this Rule and Rules 2 and 7, the Court may at any time order any party to a cause or matter (whether begun by writ, originating summons or otherwise) to give discovery by making and serving on any other party a list of the documents which are or have been in his possession, custody or power, and may at the same time or subsequently also order him to make and file an affidavit verifying such a list and to serve a copy thereof on the other party. [emphasis added]

The first threshold cited by the Applicant is O 24 r 5...